LEGAL NEWSLINE

SPRINGFIELD, Ill. (Legal Newsline) - The Illinois Supreme Court has reversed the judgment of the circuit and appellate courts before it in a case where the jury found a railroad company had a legal duty to a 12-year-old trespasser who was injured while attempting to jump on a moving train.

Justice Charles E. Freeman wrote the opinion for the 6-1 majority, and Chief Justice Thomas L. Kilbride authored a dissent. The case was filed on Sept. 20, 2012, and rehearing was denied on Nov. 26, 2012.

Plaintiff Dominic Choate was 12 years old in July 2003 when he and several friends met in an area close to some railroad tracks in Chicago Ridge. They decided to go to one of the friend's houses and their path took them over the tracks.

Testimony indicated that a train approached "at approximately 10 miles an hour" and after the group waited for a time for the train to pass, Choate and the other two boys attempted to jump on the train.

"At that point," the opinion states, "plaintiff's motive for jumping on the train was not to cross the tracks to go anywhere else. Rather, plaintiff was focused solely on trying to impress his friends, especially Van Witzenburg, his girlfriend at that time."

After failing on several attempts to board the train, plaintiff slipped from a ladder he had grabbed and his left foot was partially severed by a train wheel. Due to the extent of the injury, his leg was later amputated below the knee.

On March 16, 2005, plaintiff filed a lawsuit against Indiana Harbor Belt Railroad Company, the Baltimore and Ohio Chicago Terminal Railroad Company, and CSX Transportation, Inc. All three defendants had some connection to some or all of the several tracks that ran through the area where the accident occurred.

The complaint alleged the defendants had failed to "adequately fence the area; prevent minor children from accessing trains or the railroad tracks; post warning signs, or otherwise warn of the danger of trains; and monitor the area in the vicinity of the train and railroad tracks to prevent children from gaining access thereto."

"Defendants moved for summary judgment, contending they did not owe plaintiff a legal duty because: (1) jumping onto a moving freight train is an obvious danger to children of plaintiff's age; and (2) based on his discovery deposition, plaintiff subjectively appreciated the danger."

"The circuit court initially granted defendants' motion, but on reconsideration, vacated the summary judgment. The court found that whether the danger of jumping onto a moving freight train is so obvious as to preclude any duty owed by defendants to plaintiff is a question of fact for the jury."

The trial jury returned a verdict for the plaintiff for $6.5 million but reduced that amount to $3.9 million after assessing that the plaintiff was 40 percent comparatively negligent.

"The defendants requested a judgment n.o.v., asking the judge to set aside the verdict because (1) they did not owe plaintiff a duty to protect against the possibility that he might injure himself by confronting an obvious danger, and (2) plaintiff's alleged remedy for eliminating the dangerous condition was not reasonable," the opinion states.

The defendants alternatively requested a new trial. After the Circuit Court of Cook County denied defendants' post-trial motion, they appealed to the Appellate Court for the First District which affirmed the judgment of the circuit court.

Defendants then appealed to the state's highest court.

"Defendants contend that they are entitled to a judgment n.o.v. because they had no duty to protect against the possibility that plaintiff might injure himself confronting an obvious danger. To succeed in an action for negligence, the plaintiff must establish that the defendant owed a duty to the plaintiff, that defendant breached that duty, and that the breach proximately caused injury to the plaintiff," Freeman wrote.

"Where a plaintiff has obtained a recovery against a defendant based on negligence, and if the defendant did not owe the plaintiff a duty, then a judgment n.o.v. in favor of the defendant is required."

After going through an extensive analysis of case law on the duties owed by railroad companies to trespassing adults and children the Court concluded:

"In sum, because plaintiff was a trespasser, defendants owed him no duty of reasonable care, except to refrain from willfully and wantonly injuring him, which plaintiff does not allege. Because plaintiff was a child, Kahn and its progeny provide an exception to the "no duty" rule, and would impose on defendants a duty of reasonable care toward plaintiff, if its required elements were satisfied.

"This determination of defendants' duty is a question of law for the court; the circuit and appellate courts committed reversible error in viewing defendants' duty to plaintiff as an issue of fact for the jury to determine.

"It is always unfortunate when a child gets injured while playing, but the responsibility for a child's safety lies primarily with his parents, whose duty it is to see that the child does not endanger himself. Thus, as a matter of law, defendants did not owe plaintiff a duty."

Kilbride cast the only dissenting vote and wrote a dissent.
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"Although I initially joined in the opinion in this case, I believe that plaintiff presents arguments in his petition for rehearing that warrant this court's consideration. In particular, I agree with plaintiff's contention that the opinion contravenes the public policy established by this court in Kahn v. James Burton Co.

"The child trespasser exception recognized by this court in Kahn is applicable when: (1) a landowner knows, or should know, that children habitually frequent the property; (2) a defective structure or dangerous condition exists on the property; (3) the defective structure or dangerous condition is likely to injure children because they are incapable of appreciating the risk involved based on their age and immaturity; and (4) the expense and inconvenience of remedying the defective structure or dangerous condition is slight compared to the risk to children.

"Ultimately, this court explained that the rationale underlying the child trespasser exception, and therefore justifying the imposition of liability on the landowner for a child trespasser's injuries, is "the foreseeability of harm to the child."

"In this case, it is undisputed that plaintiff was a child trespasser and that defendant's property contained a dangerous condition, namely, a moving train. Thus, a straightforward application of Kahn means that defendant had a duty to exercise due care to remedy the condition or otherwise protect [plaintiff] from injury resulting from it."

"I believe when, as occurred here, a landowner has actual knowledge that children are trespassing and subjecting themselves to injury from a moving train, the law should impose a duty on that landowner to exercise reasonable care. Accordingly, I would allow plaintiff's petition for rehearing to reconsider our holding here."